A decision by the U.S. Board of Immigration Appeals (BIA) established a precedent this Wednesday regarding the consequences of returning to a country where an individual claims to have suffered persecution, while having a pending asylum application and using a travel permit known as advance parole.
The resolution, identified as Matter of M-R-I-, 30 I&N Dec. 137 (BIA 2026), addresses the presumption of abandonment of the application and the circumstances that may allow the interested party to justify their travel.
The precedent is particularly relevant for Cubans with pending protection applications before U.S. immigration courts, although its consequences should be assessed based on the circumstances of each case.
What does the new immigration precedent establish?
The decision does not constitute a new law passed by Congress nor a regulation issued by the U.S. Citizenship and Immigration Services (USCIS). It is an interpretation of existing immigration provisions, including federal regulation 8 C.F.R. § 1208.8(b).
This provision includes a presumption of abandonment of the asylum application when the applicant returns to the country where they claim to have suffered persecution, unless they can provide compelling reasons for that return.
Having a travel permit does not guarantee that the movement will be without consequences for an ongoing asylum process.
The evaluation may depend on the reasons for the trip, the submitted documents, and the particular circumstances of the applicant.
The case that gave rise to the precedent involves a Nepalese citizen whose return to the country of alleged persecution was examined by immigration authorities. The decision addresses the justification provided for the displacement and its relevance to the protection procedure.
The precedent also examines the obligation of immigration judges to consider certain legal grounds for ineligibility when the evidence in the record supports them, even if the Department of Homeland Security has not explicitly invoked them.
The concrete application of these rules requires distinguishing between asylum and other forms of migratory protection, such as withholding of removal and protection under the Convention Against Torture (CAT), which have specific legal requirements and consequences.
Which Cubans could be affected?
In the United States, there are Cubans with various immigration statuses, including beneficiaries of humanitarian permits, individuals who received I-220A documents, and migrants who entered through the border and subsequently applied for asylum.
However, not all of these groups are in the same legal situation nor are they necessarily subject to the same consequences for traveling outside the country.
The risk described in the preceding context is particularly significant for those who have pending asylum applications and are considering returning to Cuba, a country where they claim to have suffered persecution or fear experiencing it.
In those cases, a trip could raise questions about the continuity of the application and the basis of the alleged fear of persecution.
It is important to distinguish this situation from that of Cubans who have already obtained permanent residency through the Cuban Adjustment Act.
This legislation establishes a specific path for applying for permanent residency and does not require, by itself, proof of political persecution.
Among its general requirements is having been physically present in the United States for at least one year, in addition to meeting the other applicable legal conditions.
Returning to Cuba does not automatically terminate permanent residency nor does it, by itself, determine ineligibility for a status adjustment.
However, international travel can have different consequences depending on the immigration history and individual circumstances.
For this reason, the situation of a person with pending asylum should not be confused with that of a permanent resident or with those who are undergoing other immigration processes.
Other immigration decisions increase uncertainty
The precedent occurs in a context of changes and judicial interpretations that have raised concerns among Cuban immigrants and their legal representatives.
In August, CiberCuba reported on Matter of Delcarmen-Lara and its possible consequences for those traveling with advance parole, particularly regarding certain reentry bans related to periods of unlawful presence.
Subsequently, CiberCuba addressed the precedent Matter of G-R-B-, concerning the authority of immigration judges to examine grounds of ineligibility in asylum procedures.
These decisions address different legal issues, so their effects should not be interpreted as identical or automatically applicable to all immigrants.
The immigration attorney from Miami Willy Allen had already expressed concerns about the risks of using travel permits in certain immigration situations.
According to statements previously gathered by CiberCuba, Allen had suspended the use of advance parole for his clients since August, deeming it "too dangerous."
Weeks later, the lawyer also warned about the importance of family circumstances in Cuba when evaluating certain asylum applications.
“If you are seeking political asylum from Cuba and your family is still living there without facing persecution or problems, that can always be a factor they will use against you,” Allen explained.
The presence of family members in the country of origin does not, by itself, constitute evidence that the applicant lacks legitimate reasons to seek protection. Its relevance depends on the specific facts, the type of persecution alleged, and the available evidence.
What should Cubans with pending asylum applications do?
Cuban nationals with pending asylum applications who are considering traveling to Cuba should consult with a qualified immigration attorney beforehand.
This precaution is especially important for those who have active proceedings before an immigration court or rely on a travel authorization to leave the United States and return.
The existence of an advance parole does not guarantee that the trip will not affect an application for immigration protection, nor does it, by itself, ensure the person's admission upon their return.
Before traveling, it is necessary to examine the status of the procedure, the reasons for the trip, the immigration history, and the potential legal consequences.
Visiting family members can be an important personal reason, but it may not necessarily be sufficient to undermine a presumption of abandonment of the asylum application. The assessment depends on the circumstances and the evidence provided.
It is also important for those who have traveled to Cuba while having pending applications to inform their legal representatives about it, in order to assess the possible implications for their cases.
The main warning is that a travel authorization and a pending asylum application are two different legal matters.
A permitted displacement from an administrative perspective can raise questions about the grounds for the requested protection.
The BIA's ruling underscores the need to carefully analyze any return to a country of alleged persecution before making decisions that could jeopardize an immigration process.
Este precedente puede afectar a cubanos con casos de asilo activos en Estados Unidos. Sigue las novedades legales y migratorias en nuestra sección de .
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